APRIL 19, 2005 AN URGENCY AND A NON-URGENCY ORDINANCE RELATING TO THE CONSERVATION AND MANAGEMENT OF COASTAL SAGE SCRUB HABITAT, ESTABLISHING REGULATIONS AND PROCEDURES APPLICABLE THERETO APRIL 19, 2005 AN URGENCY AND A NON-URGENCY ORDINANCE RELATING TO THE CONSERVATION AND MANAGEMENT OF COASTAL SAGE SCRUB HABITAT, ESTABLISHING REGULATIONS AND PROCEDURES APPLICABLE THERETO

TO:HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL

FROM: DIRECTOR OF PLANNING, BUILDING, AND CODE ENFORCEMENT

DATE: APRIL 19, 2005

SUBJECT: AN URGENCY AND A NON-URGENCY ORDINANCE RELATING TO THE CONSERVATION AND MANAGEMENT OF COASTAL SAGE SCRUB HABITAT, ESTABLISHING REGULATIONS AND PROCEDURES APPLICABLE THERETO

RECOMMENDATION

Adopt Urgency Ordinance No. ___, thereby establishing amended regulations and procedures for the conservation and management of coastal sage scrub habitat and introduce Ordinance No. ___, a non-urgency version of the same urgency ordinance.

EXECUTIVE SUMMARY

The City is still actively engaged in the preparation and final approval of a Natural Communities Conservation Plan (NCCP) for the City. Although the NCCP was approved by the City Council in August 2004, approval of the final NCCP by the state and federal resource agencies is still pending. The U.S. Fish and Wildlife Service has identified Coastal Sage Scrub (CSS) as critical habitat essential to the conservation of several endangered and threatened species, including the coastal California gnatcatcher. There is approximately 1,250 acres of CSS habitat within the City, most of which will be protected by the City’s NCCP. In order to avoid the unregulated removal of CSS through weed abatement and other activity before the NCCP goes into effect, Staff is recommending that the City Council adopt a CSS protection ordinance this evening.

BACKGROUND

The City Council adopted an urgency ordinance related to the conservation and management of CSS on May 20, 2003. On July 1, 2003, the urgency ordinance was extended by the City Council to May 16, 2005 to allow time for a non-urgency version to be adopted through the City’s code amendment process.

On June 24, 2003, a draft ordinance was presented to the Planning Commission for its review and consideration. Based on public testimony and Planning Commission discussion, the draft ordinance was subsequently amended and discussed by the Planning Commission at its July 8, 2003, July 30, 2003, September 23, 2003 and October 14, 2003

meetings. Eventually, at the October 28, 2003 meeting, the Commission agreed to table the item allowing staff to bring back the draft ordinance at a future date.

After a weed abatement request was submitted in accordance with the urgency ordinance in late 2003, Staff felt that it would be better to bring the non-urgency draft ordinance back to the Planning Commission after the City’s NCCP is approved. Although the City’s NCCP has not been formally approved by the resource agencies, Staff presented an amended draft non-urgency ordinance back to the Commission for review on April 12, 2005. The draft ordinance presented to the Planning Commission differs from the original urgency ordinance, which was approved by the City Council in 2003, in that it has been modified to address some of the deficiencies identified by property owners and the environmental community with respect to the current urgency ordinance. In addition, the Planning Commission suggested some additional revisions, which have been incorporated into the ordinances that are being presented this evening.

DISCUSSION

The draft ordinance is attached for the City Council’s review. In summary, the draft ordinance provides the following:

Protection for CSS habitat by prohibiting weed abatement on properties that are greater than 2 acres in size and shown to have CSS habitat, based on the City’s NCCP map.

Exemptions for all fuel modification weed abatement required by the Fire Department or for any other public safety purpose and for weed clearing that has been done on annual basis since 1997.

A City review process for any weed abatement requests that are not exempted by the ordinance.

There was public testimony and written correspondence from the environmental community presented at the April 12, 2005 Planning Commission meeting that the ordinance did not do enough to protect other sensitive plants besides CSS. In addition, there was public testimony and written correspondence from property owners that the ordinance was too far-reaching and constituted a regulatory "takings ". The City Attorney, who was present at the April 12th Planning Commission meeting, stated that the ordinance, as presently drafted, does not constitute a taking. However, the City Attorney has expressed caution about extending protections to sensitive species that are not currently listed by the state or federal government as threatened or endangered species.

As such, only minor modifications were made to the draft ordinance, including a clarification that the City will comply with the CEQA review process, as suggested by the California Native Plant Society.

ADDITIONAL INFORMATION

On Monday, April 11, 2005, Staff met with state and federal resource agency officials to discuss the status of the resource agencies’ review of the NCCP. The resource agencies are close to completing their review of the Plan and it appears that only minor modifications are being requested. Staff expects to receive all the resource agency comments sometime within the next 4 weeks. In addition, the resource agencies asked to see the code amendments described in the NCCP that are required to be adopted by the City for the purpose of incorporating the NCCP into the City’s Development, Zoning Map and General Plan. It was noted that it would likely take months for the City Council to formally adopt such amendments due to the required public review process. Therefore, in order to not hold up the NCCP, Staff is considering the adoption of another urgency ordinance to establish interim protection to all the sensitive species covered by the NCCP until the NCCP is formally approved and in effect. To the extent that any forthcoming NCCP regulations are inconsistent with the provisions of this ordinance, this ordinance can be modified accordingly.

CONCLUSION

Staff recommends that the City Council make a motion to read the urgency ordinance by title only, waive further reading and adopt the urgency ordinance and make a motion to read the regular ordinance by title only, waive further reading and introduce the non-urgency ordinance.

Respectfully submitted:

Joel Rojas,

Director of Planning, Building

and Code Enforcement

Reviewed:

Les Evans,

City Manager

Attachments

Draft Ordinances

Public correspondence

Planning Commission excerpt minutes

ORDINANCE NO. ___

AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES RELATING TO THE CONSERVATION AND MANAGEMENT OF COASTAL SAGE SCRUB HABITAT, ESTABLISHING REGULATIONS AND PROCEDURES APPLICABLE THERETO AND AMENDING THE RANCHO PALOS VERDES MUNICIPAL CODE.

THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DOES HEREBY ORDAIN AS FOLLOWS:

Section 1. The City Council finds and declares all of the following:

Pursuant to the authority provided by the Natural Community Conservation Planning Act of 1991(commencing with Section 2800 of the California Fish and Game Code), the City has entered into a formal planning agreement with the California Department of Fish and Game ("DFG") for the purpose of implementing a natural community conservation plan ("NCCP") to provide for the regional protection and perpetuation of natural wildlife diversity while allowing compatible land use and appropriate development and growth in areas where there is coastal sage scrub ("CSS") habitat.

The City is actively engaged in the planning and preparation of a NCCP pursuant to the planning agreement. During the planning period, it is desirable to ensure that activity in the City is consistent with the goals, objectives, and efforts of the NCCP process through the adoption of regulations that both respect property rights and protect the public health, safety and general welfare.

CSS habitat supports a unique diversity of plant and wildlife species and is a valuable natural resource for the City and its residents. The United States Fish and Wildlife Service ("FWS") has identified critical habitat, comprised primarily of CSS, as being essential to the conservation of several endangered and threatened species, as defined by the Federal Endangered Species Act, including the coastal California gnatcatcher (the "gnatcatcher").

Unregulated removal of CSS, results in the elimination of critical habitat, reduces the natural species diversity in the City, and appreciably reduces the likelihood of the continued survival of the gnatcatcher, particularly if such removal occurs during the breeding season of the gnatcatcher, which occurs annually between February 15 and August 31. Similar impacts could occur from removal of occupied habitat that is not CSS.

CSS conservation and management is consistent with the efforts of the City and the requirements of the United States Fish and Wildlife Service and the California Department of Fish and Game and will support the natural resource management activities of the City in its role as lead agency in the preparation of the sub-regional NCCP for the Palos Verdes Peninsula Sub-area.

Section 2. Title 17 of the Rancho Palos Verdes Municipal Code is hereby amended by adding Chapter 17.41 thereto to read as follows:

"Chapter 17.41. Coastal Sage Scrub Conservation and Management.

17.41.010. Short title.

17.41.020. Purpose and intent.

17.41.030.Application of chapter.

17.41.040.Definitions.

17.41.050. Prohibited conduct.

17.41.060. Exemptions.

17.41.070. Application to the director.

17.41.080. Appeal.

17.41.090. Violations and penalties.

17.41.010. Short Title. This chapter shall be known and may be cited as the "Rancho Palos Verdes Coastal Sage Scrub Conservation Ordinance."

17.41.020. Purpose and intent. This chapter establishes policies, regulations, and standards necessary to ensure that the City will continue to realize the benefits provided by its natural environment. The City Council finds and declares that it is necessary to adopt this chapter to promote the public health, safety and general welfare by providing requirements and procedures that reduce adverse impacts on threatened or endangered species, which could be directly created or indirectly induced by the unregulated removal of CSS habitat and other vegetation that is occupied by threatened or endangered species, regardless of whether such removal occurs in connection with proposed and existing developments. Coastal sage scrub habitat has been designated by the United States Fish and Wildlife Service as critical habitat essential for the continued survival of, among other species, the coastal California gnatcatcher. Therefore, this chapter establishes a regulatory process for approval of weed abatement and other activities undertaken on properties that are greater than two acres in size and contain CSS habitat to ensure that such activity does not jeopardize the continued viability of any endangered or threatened species due to the removal of, or impact to, occupied habitat.

17.41.030.Application of chapter. This chapter shall apply to all properties in the city that are greater than two acres in size within the geographical limits of the City that contain CSS habitat, as depicted on the City’s most current NCCP map, including any areas subsequently annexed by the City, unless state or federal law prescribes otherwise. Nothing in this Chapter shall be construed to authorize the removal of any plant, including without limitation CSS, which would constitute a violation of any other applicable state or federal law or regulation, including without limitation, the Endangered Species Act.

17.41.040.Definitions. For the purposes of this chapter, the following definitions shall apply unless the context clearly requires otherwise:

"City" means the City of Rancho Palos Verdes.

"City council" means the city council of the City of Rancho Palos Verdes.

"Department of Fish and Game" means the California Department of Fish and Game.

"Director" means the Director of Planning, Building and Code Enforcement for the City of Rancho Palos Verdes.

Exotic Woodland" vegetation means a vegetation category identified in the City’s NCCP that consists of non-native trees and shrubs. Some of the introduced species may exist as ornamental vegetation that is used in landscaping and some are invasive and have dispersed into grassland and native habitats. Exotic species include everblooming acacia (Acacia longifolia), Sydney golden wattle (Acacia cyclops), Peruvian pepper tree (Schinus molle), Brazilian pepper tree (Schinus terebenthifolia), black locust, (Robinia pseudoacacia), myoporum (Myoporum laetum), gum tree (Eucalyptus spp.) and pines (pinus spp.).

"Fish and Wildlife Service" ("FWS") means the United States Fish and Wildlife Service.

"Gnatcatcher" means the coastal California gnatcatcher (Polioptila californica), a small insectivorous songbird that inhabits almost exclusively the coastal sage scrub plant community, although it is found in other plant communities. The gnatcatcher has been listed as a threatened species under the federal endangered species act. The continued existence of the gnatcatcher is threatened by habitat loss and fragmentation occurring in conjunction with urban and agricultural development.

"Habitat modification" means altering, clearing, cutting, destroying, relocating, or removing any coastal sage scrub, or any other act, which causes, or may be reasonably expected to cause the reduction in habitat value of a plant that makes up the coastal sage scrub plant community, including weed abatement activities. "Habitat modification or removal," includes, but is not limited to, damaging the plant or root systems by machinery, storage of materials, or soil compaction, excessive pruning, weed abatement, paving with concrete, asphalt, or other impervious material, in the immediate vicinity of the coastal sage scrub, or in a manner which may reasonably be expected to kill a coastal sage scrub plant community, using herbicides to control or kill coastal sage scrub vegetation, or excessive or inadequate irrigation.

"Natural communities conservation plan" or "NCCP" means a plan for the conservation of natural communities using an ecosystem approach prepared pursuant to the State of California’s Natural Communities Conservation Planning Act.

"Weed abatement" means, for the purposes of this chapter only, the removal of vegetation by any means, on any property in the City that is greater than two acres in size and contains CSS habitat, as depicted on the City’s most current NCCP map, but excluding tree trimming and removal or maintenance of "exotic woodland" vegetation that does not constitute or contain CSS and is not occupied by an endangered or threatened species.

17.41.050.Prohibited conduct. It shall be unlawful for any person, firm, business, corporation, or any other entity to perform habitat modification work on any CSS habitat, or perform weed abatement on any property greater than two acres in size that is within the geographical limits of the City and contains CSS habitat, as depicted on the City’s most current NCCP map, without first complying with the provisions of this Chapter.

17.41.060. Exemptions. The provisions of this Chapter shall not apply to any of the following activities, provided that the requirements of this chapter are satisfied:

Removal of CSS or any other form of habitat modification or weed abatement for the purpose of fire protection, such as the establishment of fuel modification zones and fire breaks, thinning or brush clearing, provided:

Such actions follow a regulation, a written plan or a written order that is issued or required by the Los Angeles County Fire Department or by another governmental entity; or

Such actions have been taken on a regular basis (at least once every three years) since June 23, 1997, within an area no larger than what is depicted on the City’s official aerial maps on file with the City dated June 23, 1997, as having been cleared previously.

b. Removal of CSS or any other form of habitat modification required by any written local, county, state, or federally mandated health and safety order; provided such removal or clearing of vegetation follows a regulation, written plan or written order approved and required by the applicable City, State, or Federal government.

c. Removal of CSS or any other form of habitat modification performed by the City or by another governmental entity or by a utility in response to an emergency, in order to protect the public health and safety.

d. Loss of CSS that is the result of a natural event, such as landslide, fire or flood.

Removal of CSS or other non-CSS vegetation pursuant to a validly issued 4(d) permit or 10(a) permit, which shall be provided to the director prior to the commencement of the proposed habitat removal or modification.

Application to the director.

An owner of a property within the City that is greater than two acres in size and contains CSS habitat, as depicted on the City’s most current NCCP map, who wishes to perform the following weed abatement of non-CSS vegetation, which is not exempt from the provisions of this Chapter pursuant to Section 17.41.060, first must apply to the director for approval. The party seeking approval pursuant to this paragraph shall submit an application to the director along with the following:

a plot plan generally depicting the subject property and the area(s) where the non-CSS vegetation is proposed to be removed, identifying all property lines and the location of any and all CSS on the property and its habitat value;

evidence and documentation establishing whether any vegetation on the site is occupied by endangered or threatened species; and

a current biological survey identifying those areas of the property that contain CSS and those areas that contain no CSS. The biological survey shall demonstrate to the City’s satisfaction that the areas of the property where the work is to be performed are not occupied by threatened or endangered species and that the proposed weed abatement will not "take" a protected species under either the federal or state endangered species acts and will not have an adverse impact on threatened or endangered species located elsewhere on the property or on adjacent properties. The biological survey shall be prepared by a qualified biologist, who has been certified by either the California Department of Fish and Game or the United States Fish and Wildlife Service to perform gnatcatcher surveys, and shall be prepared during the six month period preceding the date when the proposed vegetation removal is to commence.

A payment of $1,500 to establish a trust deposit to pay for the City’s review of the submitted biological survey by the City’s consulting biologist.

Upon receipt of an application to perform weed abatement on non-CSS vegetation pursuant to paragraph a of this Section 17.14.070, the director shall forward the submitted biological survey to the City’s consulting biologist for review. The director shall review the application, the biological survey, the City’s consulting biologist’s report on the submitted biological study and the accompanying material. Within thirty (30) calendar days after receiving the application, the director shall take one of the following actions:

If the information provided to the director is incomplete, the director shall so notify the property owner and shall not continue processing the request until a complete request is submitted;

If the information provided by the property owner demonstrates to the satisfaction of the director that the proposed weed abatement complies with the provisions of this section, the director shall prepare environmental review documents pursuant to the provisions of the California Environmental Quality Act ("CEQA"). If any interested party submits substantial evidence that the project may cause a significant effect on the environment, the director shall require the preparation of an Environmental Impact Report ("EIR") pursuant to the requirements of CEQA. If there is no substantial evidence of a potential significant effect on the environment, then the director shall prepare a negative declaration or mitigated negative declaration, unless the director determines that the proposed action is exempt from the provisions of CEQA. The director shall obtain public comments and comments from other agencies (including DFG and FWS) as required by CEQA. If the EIR, mitigated negative declaration, or negative declaration determines that the proposed action would not cause a significant effect on the environment, or if the certified EIR is accompanied by the approval of a statement of overriding considerations, the director shall issue a written notice to proceed to the property owner and impose any conditions necessary to ensure that the weed abatement is carried out in compliance with this chapter; or

If the director determines that the proposed activity does not comply with the provisions of this section, no weed abatement activities shall be conducted unless and until a 4(d) or 10(a) permit is obtained.

17.41.080 Appeal. The applicant or any interested person (as defined in section 17.96.990 of the City’s municipal code) may appeal a decision issued by the director pursuant to Section 17.41.070 to the City Council, pursuant to Chapter 17.80 (Hearing Notice and Appeal Procedures) of this title. The property owner shall not take action to perform any weed abatement activities authorized by the director’s decision until the appeal period has been exhausted.

17.41.090 Violations and penalties. A violation of any provision of this chapter is a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000), or by imprisonment in the county jail for a period not exceeding six (6) months, or by both such fine and imprisonment. Any person found to have violated any provision of this chapter shall be deemed guilty of a separate and distinct offense for each day, or portion thereof, during which such violation continues, and shall be punishable accordingly. In addition to the foregoing, the City may require re-vegetation work be performed by the violator, at a ratio to be determined by the director, and may assess a fine in an amount necessary to assure that the CSS that was improperly removed can be replaced and maintained for a minimum period of five years or until the CSS is reestablished and sufficient to cover any other costs incurred by the City in achieving compliance with this Chapter. Further, the City shall not accept for processing, or grant approval of, any application for development, use, permit, or other entitlement pursuant to Titles 15, 16, or 17 of the Municipal Code until such time that the property owner has complied with the provisions of this chapter and other applicable provisions of the Municipal Code.

Section 4. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this ordinance, or the application thereof to any person or place, is for any reason held to be invalid or unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity of the remainder of this ordinance. The City Council hereby declares that it would have adopted this ordinance, and each and every section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional.

Section 5. This ordinance has been reviewed in accordance with the requirements of CEQA, the State CEQA Guidelines (14 Cal. Code Regs. § 15301), and the City’s environmental guidelines. This ordinance establishes a regulatory process for the protection of the environment. Accordingly, the City Council finds the ordinance to be exempt from CEQA as a Class 8 Categorical Exemption in accordance with the State CEQA Guidelines (14 Cal. Code Regs. § 15308).

Section 6. The City Clerk shall cause this Ordinance to be posted in three (3) public places in the City within fifteen (15) days after its passage, in accordance with the provisions of Section 36933 of the Government Code. The City Clerk shall further certify to the adoption and posting of this Ordinance, and shall cause this Ordinance and its certification, together with proof of posting, to be entered in the Book of Ordinances of the Council of this City.

Section 7. When this Ordinance No. ____ becomes effective, Ordinance No. ____U is hereby repealed, and Chapter 17.41 of the Rancho Palos Verdes Municipal Code is readopted and codified as set forth herein.

PASSED, APPROVED AND ADOPTED THIS ___day of ________ 2005.

___________________________

Mayor

Attest:

_________________________

City Clerk

STATE OF CALIFORNIA )

COUNTY OF LOS ANGELES )ss

CITY OF RANCHO PALOS VERDES )

I, CAROLYNN PETRU, City Clerk of the City of Rancho Palos Verdes, do hereby certify that the whole number of members of the City Council of said City is five; the foregoing Ordinance No. ____ was duly and regularly adopted by the City Council of said City at a regular meeting thereof held on _____________, 2005, and that the same was passed and adopted by the following roll call vote: